RAMAKAIMAL Vs. NANIKUTTY AMMA

JUDGEMENT

(1.) Second defendant is the revision petitioner. Second defendant is made liable for mesne profits and costs as he is found to be in possession of the property under the first defendant. The respondent (plaintiff) sought to execute the decree against the second defendant. Second defendant filed S. A. 224 of 1978 claiming benefits under Kerala Debt Relief Act (Act 17 of 1977), hereafter referred to as the Act. That claim was resisted by the plaintiff on the ground that the decree debt is not a debt covered by the Act. The Court below held that the decree liability arose out of breach of trust and hence it is not a debt coming within the purview of the Act.

(2.) The suit was filed by the plaintiff for recovery of possession of the property which was allotted to her share. Possession of the property was given to the second defendant by the "first defendant who was plaintiff's guardian. The suit was decreed against both the defendants and it was during the execution proceedings that the second defendant claimed benefits under the Act.

(3.) Counsel for the second defendant submitted that the guardian of the plaintiff is not a trustee and so there is no question of any breach of trust and the Court below was not justified in passing the impugned order. It is contended that any act of omission or commission on the part of the guardian adverse to the minor's interests will not constitute a breach of trust. Learned counsel for the plaintiff submitted that though a guardian is not a trustee as such, his position is analogous to that of a trustee he having fiduciary relationship with his ward and so breach of any duty on the part of the guardian would amount to breach of trust and hence the contention that S.2(3)(c) of the Act has no application is not tenable.